• E4J University Module Series: Counter-Terrorism

• Module 11: Right to a Fair Trial

• Introduction and learning outcomes

• Key issues

• • International legal framework
  • Regional human rights instruments
  • Key contemporary issues
  • Armed conflict

• Exercises and case studies

• • Exercises
  • Case studies

• Possible class structure

• Core reading

• Advanced reading

• Student assessment

• Additional teaching tools

• References

 

Published in July 2018.

 

 

  This module is a resource for lecturers  

 

Regional human rights instruments

 

Various elements of the right to a fair trial are also reflected within regional human rights instruments to varying degrees. In addition, regional courts have been very active in terms of their interpretation of these provisions and the development of related jurisprudence, especially since fair trial and due process rights can impact directly or indirectly upon the protection of other human rights. Important examples of this jurisprudence are examined in the following sections which look at specific fair trial principles.

The European region

The European Convention on Human Rights

One of the most detailed provisions, with accompanying extensive case law on the right to a fair trial in a terrorism related context, is article 6 of the European Convention on Human Rights (ECHR) (adopted 4 November 1950, entered into force 3 September 1953). The key elements of article 6 of particular relevance here are that:

• In the determination of any criminal charge, a person is "entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law" which will normally take place in public. (Article 6(1)).
• "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." (Article 6(2)).
• "Everyone charged with a criminal offence has the following minimum rights." (Article 6(3)):
  • To be informed promptly, in a language which he understands of the nature and cause of the accusation against him. (Article 6(3)(a)).
  • To have adequate time and facilities for the preparation of his defence. (Article 6(3)(b)).
  • To defend himself in person or through legal assistance of his own choosing, with provision of legal aid "when the interests of justice so require". (Article 6(3)(c)).
  • To examine or cross-examine witnesses. (Article 6(3)(d)).
  • Access to the free assistance of an interpreter if it would not otherwise be possible for him to understand or participate in court proceedings.

 

The Inter-American region

American Convention on Human Rights

Similarly, the relevant provision of the American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978), article 8, is well developed. Its baseline position is that "[e]very person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him ...". Article 8(2) then goes on to state that any person accused of a criminal offence has the right to be presumed innocent. It further provides a number of safeguards and guarantees aimed at ensuring full equality of arms. These are largely the same as the European Convention on Human Rights (ECHR), namely access to an interpreter where appropriate; fully knowing the case against him; adequate time and means to prepare a defence, including legal representation; the right of examination and cross-examination of witnesses. Furthermore, provision is made for the accused to defend himself personally or through legal representation; to not be compelled to testify against himself or plead guilty; and the right to appeal the judgment to a higher court.

The text of article 8 of the American Convention is more extensive than the comparable text of article 6 ECHR in that it also states that "[a] confession of guilt by the accused shall be valid only if it is made without coercion of any kind" (article 8(3)); and provides that "[a]n accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause" (article 8(4)). As with the ECHR, criminal proceedings should occur in public (article 8(5)). In practice, however, there is no significant difference between the scope and nature of the rights and protections given under both the ECHR and the American Convention since their respective Courts have been very active in interpreting their provisions and covering any potential gaps. For example, although article 6 ECHR does not expressly refer to equality of arms, this is a core underpinning principle, reflected especially in article 6(3), which is regularly underscored in the jurisprudence of the European Court of Human Rights (ECtHR).

 

The African region

African Charter on Human and People's Rights

The right to a fair trial is also provided for within article 7 of the African Charter (adopted 1 June 1981, entered into force 21 October 1986), although in less detail than the two other regional convention provisions just examined. It provides that:

1. Every individual shall have the right to have his cause heard. This comprises:

2. 1. The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
   2. The right to be presumed innocent until proved guilty by a competent court or tribunal;
   3. The right to defence, including the right to be defended by counsel of his choice;
   4. The right to be tried within a reasonable time by an impartial court or tribunal.

3. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

As it can be seen, a number of the essential elements of the right to a fair trial are present, such as the presumption of innocence, the right to be tried within a reasonable time by an impartial court of tribunal, the right of appeal, and so forth. In contrast to article 6 of the European Convention on Human Rights (ECHR) and article 8 of the American Convention, the details of what these rights and guarantees entail are not included. Furthermore, the approach within the African human rights system has been not to read article 7 in isolation when determining fair trial rights, but rather to read it together with article 3 of the African Charter - which provides for equality of the individual before the law - as well as article 26, which obliges State parties "to guarantee the independence of the Courts". Once again however, the detail of these provisions has not been specified, rather it was left to the African Commission, and African Court, on Human and Peoples Rights to determine.

 

The Asian region

With respect to the Asian human rights system, the principal documents are the ASEAN Declaration on Human Rights (adopted 18 November 2012) and the Asian Human Rights Charter (adopted 17 May 1998).

With respect to the Declaration, the primary provision dealing with fair trial and due process rights is article 20(1) which states that:

Every person charged with a criminal offence shall be presumed innocent until proved guilty according to law in a fair and public trial, by a competent, independent and impartial tribunal, at which the accused is guaranteed the right to defence.

As it is apparent, this provision restates a number of core fair trial and due process principles, namely the presumption of innocence; the right to a fair and public trial, by a competent, independent and impartial tribunal; and the right of the accused person to defend himself. It is notable, nevertheless, that article 20 does not make provision on some aspects covered by other international or regional instruments on the right to fair trial. For instance, no express provision is made regarding the equality of arms, though this right is perhaps mitigated to some extent by article 3, which states that "[e]very person is equal before the law." No detail is given though as to what this might mean in practice in terms of, e.g., due process rights that an accused person has, including access to an interpreter if needed, the ability to examine or cross-examine witnesses, or the provision of legal aid. This all said, it is possible that such apparent omissions are addressed by article 3.1, which provides more generally that the Asian Human Rights Charter "endorse[s] all the rights that are contained in international instruments. It is unnecessary to restate them here. We believe that these rights need to be seen in a holistic manner and that individual rights are best pursued through a broader conceptualization which forms the basis of the following section."

In relation to the Asian Human Rights Charter, the relevant provision is article 3.7, which states that:

All states must abolish the death penalty. Where it exists, it may be imposed only rarely for the most serious crimes. Before a person can be deprived of life by the imposition of the death penalty, he or she must be ensured a fair trial before an independent and impartial tribunal with full opportunity of legal representation of his or her choice, adequate time for preparation of defence, presumption of innocence and the right to review by a higher tribunal. Execution should never be carried out in public or otherwise exhibited in public.

The first issue to note is that the right to a fair trial is only provided for in the context of the imposition of the death penalty, leaving the position for the trial of other non-capital offences unclear. Notably also, while article 3.7 refers to a number of fundamental fair trial and due process rights - such as the tribunal's independence and impartiality; access to appropriate legal representation (though unclear as to whether this should be funded by the state through legal aid); the presumption of innocence; and the right of appeal - there are important omissions too. These include the principle of the equality of arms, and the specification of procedural rights such as access to an interpreter, the ability to examine and cross-examine witnesses, and so forth.

 

The Middle East and Gulf regions

The revised Arab Charter on Human Rights also makes provision for the right to a fair trial. The starting provision is article 13:

1. Everyone has the right to a fair trial that affords adequate guarantees before a competent, independent and impartial court that has been constituted by law to hear any criminal charge against him or to decide on his rights or his obligations. Each State party shall guarantee to those without the requisite financial resources legal aid to enable them to defend their rights. 

2. Trials shall be public, except in exceptional cases that may be warranted by the interests of justice in a society that respects human freedoms and rights. 

Compared with the relative brevity of the fair trial provision contained in the African Charter, this provision is less extensive in terms of its scope and detail. It does, however, include a number of the core principles regarding the competence, independence and impartiality of the court; the ability of the accused to be able to defend himself; and that a trial should normally take place in public. Once again though, this provision should not be read in isolation, rather together with article 11, which provides that "[a]ll persons are equal before the law and have the right to enjoy its protection without discrimination"; and article 12 which states that "[a]ll persons are equal before the courts and tribunals" as well as the "independence of the judiciary". That said, important omissions remain, such as the right of appeal, or the right of assistance from an interpreter to ensure that an accused person can fully comprehend and participate in legal proceedings. Some of these gaps may be addressed, however, by the more general provisions and guiding principles articulated in article 3 of the Arab Charter. Notably, article 12 also expressly provides for the protection of magistrates "against any interference, pressure or threats", which can be a significant problem, including when dealing with terrorism-related matters.

With respect to the Organization of Islamic Cooperation, the relevant provision of the 1990 Cairo Declaration on Human Rights in Islam (adopted 5 August 1990) is article 19. This is very brief indeed, the relevant parts providing only that:

(a)    All individuals are equal before the law, without distinction between the ruler and the ruled;

(b)    The right to resort to justice is guaranteed to everyone;

(d)    There shall be no crime or punishment except as provided for in the Shari'ah;

(e)    A defendant is innocent until his guilt is proven in a fast trial in which he shall be given all of the guarantees of defence.

Many of the fundamental fair trial principles are not articulated, such as the right to a competent, independent and impartial court, or the right of appeal. Although mention is made in article 19(e) to an accused person being afforded "all of the guarantees of defence" no detail is given as to what this might mean in practice.

 

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